Why are judges playing into the hands of a political party?

If the judiciary is the heart of the republic, India surely has a heart problem. Since the delivery of judgment on the Judges' Transfer Case by a Supreme Court bench, the heart has been knocking furiously at the ribs.

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Sumit MITRA

October 18, 2013

ISSUE DATE: February 28, 1982

UPDATED: July 15, 2014 12:57 IST

H3hagwati: prime mover in the transfe~ case

If the judiciary is the heart of the republic, India surely has a heart problem. Since the delivery of judgment on the Judges' Transfer Case by a Supreme Court bench (see India today, January 15), the heart has been knocking furiously at the ribs. And Mrs Gandhi's Administration, like a cardiac smoker, inhaled another killer drag on top of it.

For a whole month since the judgment, criticism of its authors has been blitzing the media, hogging newspaper space as though the Ganga is on fire. In the process inhibitions based on the contempt law have been thrown overboard and judges have been dragged out of their grey isolation to be examined under public gaze resembling the manner in which the bust lines of screen idols are watched. And before the dust of controversy was anywhere near settling down, the Law Ministry, stewarded by the newly-appointed Jagannath Kaushal, kicked up another shindy by circulating a questionnaire which is pregnant with questionable-if not downright sinister-implications.

Black Sheep: In the transfer case, the anti-hero whose masochistic jabs at the judiciary led to the controversy is Justice Prafullachandra Natwarlal Bhagwati the senior-most judge on the seven-man bench and the Supreme Court's Number 2 man.

Hovering above the bench like a brooding cloud, Bhagwati became the prime mover in a historic harakiri which empowered the executive to lead the judiciary by its nose. As though that wasn't enough, now comes the ominous questionnaire, cooked almost to a witches recipe in the kitchen of a newly-reconstituted Law Commission headed by K.K. Mathew, a retired Supreme Court judge.

Mathew, a dark, skinny Keralite who mouths radical phrases with r's trilled, has, in a few weeks' time, taken up Bhagwati's mantle and finds that it fits him well. He had all along been a willing instrument in the hands of Mrs Gandhi in her attempts at cutting the judiciary to size. In the famous Keshavanand Bharati Case, Mathew supported the executive's view (which was struck down by the majority) that the Constitution had no 'basic structure' which could not be altered by Parliament.

In the 1974 case on amendment of section 13 of the Maintenance of lnternal Security Act (MISA), he upheld the majority view that a person could be detained for 12 months without trial, a weapon which the ruling party wielded with exceptional efficacy a year later, after promulgation of the Emergency, to harass the Opposition.

The questionnaire, meandering through its 34 points, nevertheless reads like what T.S. Eliot would have called the "tedious argument of insidious intent". Shorn of its scholastic frills and its seemingly pointless catechism, the questionnaire leads by its unique Socratic method to a single devilish message: bust the Supreme Court.Carefully Contrived: It was prepared over three months by the Law Commission members who include, apart from Mathew, Nasarulla Beg, retired chief justice of Allahabad High Court, T.P. Chaturvedi, a retired judge of the same court, and V.V. Vaze, the member-secretary to the Commission.

Though it was circulated widely among jurists, lawyers, bar council and bar association members, deans of law faculties and editors of newspapers and magazines, the Commission did not forget to attach the Catch-22 phrase: that answers from the public would be treated in confidence, thus holding the right to pass off its favoured view as the majority view.

The awesome range of the questionnaire, however. suggests that this time Mathew really intends swinging the wrecker's ball right onto the whole edifice of the Indian judiciary. With his characteristic saturnine smile, he told India Today: "This time the Law Commission means business and wants to bring about absolutely drastic changes."

The loaded questions fired by Mathew spell out their meaning at the very outset. The very first query asked whether the Supreme Court should be replaced by a constitutional court, dealing exclusively with constitutional matters. The question goes on to ask whether in such a constitutional court the existing procedure of judges sitting in benches should be replaced by their sitting en banc (so that balancing of known views of the judges will no longer be possible), and whether all non-constitutional matters should be referred to a separate court of appeal.Sinister Portents: Talking to India Today, Mathew hastened to add that the questionnaire was not suggestive of "any ulterior motive" and replies to it would merely provide the basis for the Commission to formulate its recommendations, which would be made known "either at 1982 end or in early 1983". But he added - without mincing words - that his own personal view was "a loud yes" to the first question.

Explaining his view, Mathew recently told a press conference that the Supreme Court today, saddled as it is with a colossal arrear of 50,000 cases, could not provide the "atmosphere of leisure" to adjudicate on constitutional issues. He defined constitutional law as "a bench of politics", and said he wished to see constitutional judges steeped in other lores as well, such as economics, history and politics. What he carefully slurred over is the central question: how is the constitutional court to be constituted?

That, indeed, holds the key to the understanding of the Government's intentions. In such a court it can really play havoc with the judicial system by retaining only the pliable judges on it and shunting off the intractable ones to the less important Court of Appeal. And, if a system of seating the judges en banc is established, the few stray voices of dissent - allowed only for the sake of plausibility - can always be drowned in the chorus of approval. In fact, with such a constitutional court foisted on top of the judicial pyramid, the Government can get away with murder, not to speak of realising its fondly-nursed hope of having a presidential system installed.

Ingenuous Arguments: Despite Mathew's repeated denials, the questionnaire - like in a Freudian psychoanalysis - revolves around the presumption of a buried fixation: that the Supreme Court is out of tune with the social changes; that the courts are becoming too dilatory, too punctilious, and as such a hindrance to Parliament's efforts at bringing about quick-moving legislations. "The mood of the questions," said a retired Supreme Court judge, "is not indicative, or even optative, but positively desiderative."

The punch lines come in the form of background notes to the questions, which are a delightful essay in hypnotic autosuggestion. Like the tune of the Pied Piper, the background notes aim at shepherding answers to the questionnaire to the desired goal, so that no doubts are raised later that the Law Commission had ridden roughshod over public opinion. Examples:

On Question 1 - whether judges of the proposed constitution court should sit enbanc the background note suggestively mentions: "Even in the USA leading advocates find it difficult to predict the range of first amendments in view of the change in the personnel of the court". The moral: make the judges all sit together, and safely predict the judgment.

On Question 5 - whether the judgments of the Supreme Court regarding compensations payable upon the abolition of feudal rights brought to nought the process of social reform - the background note itself provides the answer. It says: "One of the judges of the Supreme Court expressed his view that the legislation relating to abolition of the zamindari system met its Waterloo at the hands of the judiciary". . .and then goes on to beef up its case by citing precedents from case records from as far away as New Zealand.

On Question 6 - whether courts are eating away at executive preserves - the background note shrewdly reminds its readers that "if the Supreme Court had not entertained the challenge to the Bearer Bond Scheme, Government could have raised resources to the tune of Rs 1000 crore". (It discreetly ignores the fact that the Government has in fact raised the sum after the stay order was vacated.)

On Question 12 - which asks if constitutional writs that get dismissed should at all be admitted - the background note readily provides the convenient statistical argument: not more than 5 per cent of the writs succeed in India while their success rate in West Germany is a miniscule 1.18 per cent.

On Question 31 - whether it is justified that the Supreme Court should overrule the high courts in matters falling within their discretion - the background again conveniently quotes an anonymous Supreme Court judge who expressed displeasure over "the manner in which the Supreme Court interferes in small matters".

Unfinished Task: The language of the questionnaire may be prolix and argumentative, but the intention is quite simple. As R. K. Makhija, president of the Delhi High Court Bar Association, put it: "Mathew wants to complete his unfinished task of reducing the Supreme Court to the status of a serf. He wants to block the writs in the name of reducing work-load.

He wants to cut back on hearing so that points that do not suit the executive cannot be clarified. He wants to abolish plurality of judgment, thus denying democracy within the court itself. Finally, he wants to do away with the very Supreme Court which cradled him for six long years and wants to play the Frankenstein to it."

Mathews attempt at bulldozing the judiciary is hardly an unrelated phenomenon. The Congress(I) had since long been thinking on the same lines, during the Emergency as well as after its triumphant return in 1980. In 1976 - at the height of the Emergency - a panel presided over by Swaran Singh made recommendations on similar lines, but the rout of the Congress in 1977 threw a spanner in its works. However, before its hurried dissolution, the panel was perfecting a recommendation to bifurcate the Supreme Court and to introduce a presidential system of government on the model of the French Constitution.

After the Congress(I) victory in 1980, the party's leaders have never relented from lambasting the courts, stridently asserting that Parliament is supreme and singing paeans of praise to the presidential system. The most significant bench-mark in the Congress(I)'s war against "dictatorship of the courts" was the executive victory in last December's Judges' Transfer Case.Downgrading: The leitmotif of the judgment bears an unmistakable thematic resemblance to the essence of the Law Commission questionnaire: the Supreme Court is fit to be treated with disdain. The judgment's cloning with the questionnaire is established in the countless asides and obiter dicta by the judges themselves.

Some of them virtually went out of their way to attack the judiciary in the judges' case in passages that are totally out of context. Justice D. A. Desai, for instance, regarded the judicial system-as "cancer-ridden" in a paragraph that has no relevance to either the main issues or the subsidiary issues in his stilted and voluminous judgment. Justice Bhagwati went a step further in showering choice innuendoes on the Chief Justice of India, thus debasing the highest judicial office of the land.

As V. M. Tarkunde, the eminent jurist observed: "The decision (in the judges' case) will make the judiciary subordinate to the executive and nullify the principle of separation of the judiciary from the executive which has been laid down as a Directive Principle of State Policy in Article 50 of the Constitution."

Dangerous Trends: This death-wish of the judges may not be accidental. The Supreme Court is now - and has always been - as divided into various ideological strands as society itself. A section of the judges, mostly in the 50-55 age group, is certainly more ambitious than others and believes that there is nothing wrong in going up the hierarchy of the bench, even for considerations other than seniority.

Some lawyers now advocate a wholesale change in the policy of judges' transfer: of swift turnovers and hirings and firings as though the courts were an American corporation. Echoing this sentiment, Justice Fazl Ali wrote in his judgment that the Government should enforce a new system of wholesale transfer of judges, even though the Chief Justice of India is firmly opposed to it. He added: "If... the CJI does not change his view and sticks to his opposition of the policy, then we think this will be a fit and proper case where the President might overrule the CJI and enforce the policy."

As things stand today, the ding-dong battle between the executive and the judiciary, and the domestic strife within the judiciary itself, point to the following possibilities:

the high courts will be packed with judges who enjoy the Central Government's confidence;

these men will crawl up to the Supreme Court and swamp all dissenting or uncomfortable opinion there; and,

this taming of the Supreme Court by the 'convection process' should be completed without any fuss, so that the Government can go ahead with reversing the earlier judgment on the Keshavanand Bharati Case to the effect that Parliament cannot lay its hands on certain basic features of the Constitution. This, naturally, will open the floodgates for a whole array of spectacular changes - the presidential system being just one such possibility.

Self-destructive: The Law Commission questionnaire provides the second arm to the pincer attack. Failing to pack the judiciary by the natural process, the Government can fall back on the Law Commission to recommend its desperate remedy: that of bypassing the Supreme Court by setting up a constitutional court. Said R.K. Mahajan, secretary of the Delhi Bar Association: "The Law Commission is playing the role of the undertaker for the judicial system."

But why are the judges themselves becoming willing actors in a self-destructive plot? Why are they playing into the hands of a political party? Arun Shourie, writing in the Indian Express, attempts to solve this riddle with a devastating quote from Justice Jackson who said that "judges are more often bribed by their ambition and loyalty than by money". The pity is - independently and on their own, some of the vulnerable judges are signing even democracy away.

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